On Retroactive Criminal Records

Posted by Editoron November 29, 2012in Commentary|Comments Off on On Retroactive Criminal Records

By: Daniel Nardini

A Florida resident named Gabriel Hernandez, who was busted in 2001 for selling LSD, was threatened with deportation for this crime committed almost 12 years ago. Hernandez argued that at the time his lawyer did not inform him if he pleaded guilty he could be deported. Hernandez is far from being the only one whose guilty plea is being used retroactively to threaten him with deportation. Many other legal permanent residents are also being threatened with deportation for crimes they had committed ten, twenty, even thirty years ago. Why? Because of a provision in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 which mandates legal immigrants can be deported even for minor offenses such as shoplifting. Normally, U.S. citizens would simply pay for their crimes with jail and a fine depending on how serious the offense. No one would be made to pay for the same crime many times over.

It is this provision of the law that threatens those legal immigrants who are not U.S. citizens with deportation and a denial of all their civil and human rights because of whatever crime they committed a long time ago. If I were to commit petty theft tomorrow, does this mean that I permanently lose my civil and human rights ten years later? Must I live in fear that because my lawyer did not inform me of a provision in the law that I could be deported and have no legal recourse against deportation? This has happened to tens of thousands of people, and the worst part of it is that their lawyers did not inform them of this provision in the law. The law itself is a grey area…..or more like a legal black hole. Many state courts have ruled that immigrant defendants who face deportation cannot claim that their lawyers did not inform them if they pleaded guilty to a crime they could be deported. So this puts legal immigrants into a Catch 22 situation. If they plead guilty they could face deportation later, and if they do not plead guilty they can still be found guilty and still face the threat of deportation.

However, there may be some chance for those who have fallen into this legal black hole. One Kentucky legal immigrant resident named Jose Padilla was more successful in convincing a state judge that he should not be deported since Padilla’s lawyer did not inform him that he could be deported if he pleaded guilty. Because of the contradictory rulings by a number of state courts, Padilla’s case will be heading to the U.S. Supreme Court. I can only hope that the Supreme Court has the wisdom and foresight to change this provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. No legal immigrant should have a retroactive Sword of Damocles hanging over their heads for a minor crime they committed a long time ago. They should be treated like U.S. citizens who have simply paid for their crimes and get on with life.